Hamm v. Ray

Carley, Justice.

The State Board of Pardons and Paroles (Board) paroled George Hamm, subject to both standard and special conditions. Thereafter, Hamm filed a petition for writ of mandamus to compel the Board to remove certain of the conditions of his parole. The trial court denied the petition, and Hamm appeals.

1. The Board required Hamm to pay an electronic monitoring fee and to make a $10 monthly payment to the Georgia Crime Victims Emergency Fund. Hamm contends that these two special conditions were not part of the State’s parole regimen at the time of his convictions and, thus, that the Board’s imposition thereof violates the ex post facto clause of the state constitution. Ga. Const, of 1983, Art. I, Sec. I, Par. X.

The ex post facto clause of the Georgia Constitution prohibits the infliction of a greater punishment than was permitted by the law in effect at the time of the commission of the offense, the subsequent criminal proscription of an act which was not a crime when done, the alteration of the quality or degree of the charge, the requirement of less or different evidence than was necessary at the time of the violation, and the deprivation of any substantial right or immunity possessed at the time the defendant committed the act. Love v. State, 271 Ga. 398, 399 (1) (517 SE2d 53) (1999). “[T]he prohibition of ex post facto laws applies only to substantive, but not procedural, rights. [Cits.]” Cannon v. State, 246 Ga. 754, 755 (1) (272 SE2d 709) (1980). Reparation and restitution are authorized conditions of parole under OCGA § 42-9-44 (a). The imposition of fees to reimburse Hamm’s victims and the State for the costs of his crimes neither increased his punishment nor affected his substantive rights, but instead constituted a more detailed requirement regarding his obligation to make reparation and restitution as a condition of parole. Cannon v. State, supra at 755 (1). Moreover, the state ex post facto clause, like its federal counterpart, does not require that the courts engage in micromanagement of the endless array of the Board’s adjustments to its parole procedures, merely because there is some remote risk of impact on the duration of confinement. California Dept. of Corrections v. Morales, 514 U. S. 499, 508 (III) (115 SC 1597, 131 LE2d 588) (1995). Accordingly, we hold that the Board’s imposition of the special fee conditions does not violate Georgia’s ex post facto clause.

2. Hamm’s parole officer provided him with a “Sex Offender Instruction Sheet” and required him to comply therewith. This document is tailored to sexual offenders and, among other things, limits access to pornography, alcohol, and controlled substances, forbids *660contact with a child under the age of 18 without the presence of a chaperone, provides for counseling and unfettered polygraph assessments, and governs reporting by the parolee to the parole officer. Hamm challenges the imposition of these conditions on the ground that he was not convicted of any sex offense.

“Any person who is paroled shall be released on such terms and conditions as the board shall prescribe.” (Emphasis supplied.) OCGA § 42-9-42 (d) (1). “The board, upon placing a person on parole, shall specify in writing the terms and conditions thereof. A certified copy of the conditions shall be given to the parolee.” (Emphasis supplied.) OCGA § 42-9-44 (a). The copy of the Board-prescribed conditions provided to Hamm did not include any condition related to sexual offenses. Indeed, not only has Hamm never been convicted of such a crime, there is nothing in the record which indicates that the Board believed that Hamm posed a risk for the commission of such acts. It appears that this determination was based solely upon the individual judgment of the parole officer. Pursuant to OCGA § 42-9-44 (a), the Board appropriately required that Hamm carry out the instructions of his parole officer. However, since only the Board can impose conditions, the parole officer was limited to instructing Hamm as to what was required of him so as to comply with the conditions of parole set forth by the Board. See In re Petition of Dunn, 488 P2d 902, 903 (Mont. 1971). Examination of the “Sex Offender Instruction Sheet” reveals that its requirements are not only instructions for complying with other Board-imposed conditions, but are themselves conditions imposed by the parole officer on Hamm. By specifying certain conditions which the Board shall impose on those convicted of a “sexual offense,” the General Assembly intended that requirements which are tailored to sexual offenders be in the nature of conditions which only the Board may prescribe. OCGA § 42-9-44.1.

Moreover, this Court recently held that it is not sufficient for a probation officer to inform a defendant after sentencing of certain additional conditions of his probation. Fox v. State, 272 Ga. 163 (1) (527 SE2d 847) (2000). Likewise, certain conditions of parole are particularly inappropriate subjects for the exercise of discretion by individual parole officers, and are better left for the Board to specify, in the fulfillment of its role as the more detached arbiter and in the furtherance of the goal of minimizing the variation of conditions among similarly situated parolees. See Roman v. State, 570 P2d 1235, 1243-1244 (Alaska 1977). Conditions which are tailored to sex offenders and denominated accordingly are prime examples of conditions which individual parole officers should not be allowed to impose, due to the increased stigma attached to the identification of a parolee as a sex offender.

Therefore, the parole officer had no discretion or authority to *661condition continuation of Hamm’s parole on compliance with the so-called sex offender instructions. Hamm is entitled to mandamus, as he has a clear legal right to compel removal of the sex offender conditions as a term of his parole. See Johnson v. Griffin, 271 Ga. 663 (522 SE2d 657) (1999); Riley v. Garrett, 219 Ga. 345, 348 (2) (133 SE2d 367) (1963). Compare Vargas v. Morris, 266 Ga. 141 (465 SE2d 275) (1996).

Judgment affirmed in part and reversed in part.

All the Justices concur, except Hunstein and Thompson, JJ, who dissent.